Of all the cases challenging state bans on same-sex marriage, the Nevada case Sevcik v. Sandoval is furthest along on the inevitable journey back to the Supreme Court, currently awaiting consideration from the Ninth Circuit. In November 2012, a federal district judge ruled against the plaintiffs, upholding Nevada’s constitutional amendment, but the legal landscape has changed considerably since then. On Tuesday, Nevada’s Coalition for the Protection of Marriage, which is a party to the case along with the state, filed its answer brief, revealing some interesting details about how other marriage fights may also play out.
The lawyer representing the Coalition is Monte Stewart, who just so happens to be helping Utah defend its marriage ban as well. The timing of his brief could not have been more unlucky for him, because in a different case about jury selection, the Ninth Circuit issued a ruling Tuesday declaring that sexual orientation is deserving of “heightened scrutiny,” meaning that the government must meet a greater burden to justify discrimination against people who may be lesbian, gay, or bisexual. Thus, many of his arguments are now moot because the precedents have changed.
Stewart’s arguments about scrutiny aren’t the only aspect of his brief that are moot. Not unlike Utah’s appeal to the Supreme Court for a stay in that case (also penned by Stewart), the Coalition brief meditates primarily on the idea that marriage between a man and a woman is somehow different than what marriage for same-sex couples could ever be. He never clearly specifies what that distinction is aside from the ability to procreate, emphasizing how this uniqueness is important to children. Nevada, however, already allows same-sex couples to jointly adopt through domestic partnerships, so these arguments are largely irrelevant.
In the brief, Stewart openly admits that he sees this as a case about “competing models for marriage” and not about “the lives of gay men and lesbians.” On this theme, he thought it apt to compare those vying for marriage equality to white supremacists, because of both groups’ parallel attempts to change the definition of marriage:
The genderless marriage proponents’ story also relies on several misleading strategies. One of those strategies is to argue that just as white supremacists engrafted anti-miscegenation rules onto the marriage institution and were rightly repudiated by the Supreme Court in Loving, so homophobes, with laws like Nevada’s 2002 marriage amendment, have engrafted the man-woman meaning onto marriage and should likewise be repudiated by this Court. At first blush, this strategy is only silly because, of course, the union of a man and a woman has been a core, constitutive meaning of the marriage institution found in virtually every society since pre-history. Nevada’s marriage amendment did not add that institutionalized meaning but rather sought to protect and preserve it and the valuable social benefits flowing from it.
On closer examination, this strategy reveals something deeply troubling. White supremacists engrafted the anti-miscegenation rules onto the marriage institution — and thereby altered marriage from how it had existed at common law and throughout the millennia — to bend that institution into the new and foreign role of inculcating white supremacist doctrines into the consciousness of the people generally. Because of the profound teaching, forming, and transforming power that fundamental social institutions like marriage have over all of us, this evil strategy undoubtedly worked effectively for decades.
Question: Where does one see today a similar massive political effort to profoundly change the marriage institution in order to bend it into a new and foreign role, one in important ways at odds with its ancient and essential roles? Answer: The genderless marriage movement. The big difference, of course, is the immorality of the effort to advance the white supremacist dogma compared to the morality of the effort to advance the social well-being and individual worth of gay men and lesbians. Whether that moral objective is sufficiently weighty to justify so bending and altering the marriage institution is for the free, open, democratic process to decide. Certainly, the comparison of laws that protect the man-woman meaning of marriage to anti-miscegenation laws is a false analogy that provides no basis for any court to mandate the redefinition of marriage.
The argument that the definition of marriage has never changed ignores the fact that it has changed many times “since pre-history,” particularly the various evolutions of women’s rights within a marriage. Limitations on race are not an exception to this, as Stewart implies, but just another example of the way the institution of marriage is fluid and adapts to the norms of its times. Only during the mid-20th century did the burgeoning field of psychology establish an understanding of homosexuality (and all sexuality for that matter) as an innate, unchanging identity. Opening marriage to same-sex couples does not constitute a redefinition of the institution, but a recognition that there are families deserving of the same protections and benefits that the institution provides.
Stewart’s admission that the effort to “advance the social well-being and individual worth of gay men and lesbians” is “moral” is a telling one. Given the Ninth Circuit’s brand new precedent for protecting sexual orientation as a suspect class, it may be the one point in his brief that actually resonates.
(HT: Kathleen Perrin)